U-Turn: Potential Big Changes in Voting Rights Cases in TX, NC

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Currently, there are two big voting rights cases pending in Texas and North Carolina which involve issues that could not only reshape election law in those states but also help sharpen and redefine the contours of  the Voting Rights Act. But recently we have seen changes in both cases that could substantially change – or even end these proceedings.

In Texas, the U.S. Department of Justice – which had been supporting private plaintiffs in their challenge to the Lone Star State’s strict photo ID law – informed a federal court yesterday that it will no longer argue that the state legislature intended to discriminate against minority voters when it enacted voter ID. There had been some reports yesterday that DOJ was withdrawing from the case entirely (in large part because the new Administration does not agree with its predecessor’s view of the law), but DOJ will continue to support arguments that the law has the effect of discriminating against minority voters. This sounds like a small difference – since the law would have to change either way should plaintiffs prevail – but as Election Law Blog’s Rick Hasen notes it’s a major change:

So what does this new motion mean? Even if granted, this motion by itself will have little impact on the case itself, as I will explain, but is indicative of a pullback of the DOJ in this case and a sign of possible things to come — with DOJ either staying out of these cases, or coming in on the side of states that have passed strict voting laws (a reversal of practice under the Obama DOJ)…

There are two primary claims in this case: that Texas passed its law with a racially discriminatory intent and that it passed it with a racially discriminatory effect. The trial court initially found that Texas acted with both discriminatory effect [and intent]. Eventually the entire 5th Circuit, sitting en banc, agreed on the effects question, but held that the trial court used the wrong evidence and standard to judge discriminatory intent. It remanded the case for a new hearing on that question, which is taking place tomorrow.

Here’s why this matters. The Fifth Circuit said that a discriminatory effects finding would be a reason to soften Texas’s law (such as by allowing those who lack ID and cannot easily get it to put in an affidavit swearing to identity), but not to throw it out entirely. But a finding of discriminatory intent would allow throwing the law out entirely. It could also provide a predicate, under Section 3 of the Act, to put Texas back under federal supervision for up to 10 years.  So a finding of intent is a big deal.

BUT: in this case there is both the DOJ and private voting rights plaintiffs pursuing the case. So even if the trial court lets DOJ drop out, the private plaintiffs can still pursue the same claims. All this does is not put DOJ in the awkward position of putting forward a theory that AG Sessions likely does not believe. It will not have any effect on the case (except to the extent that the DOJ’s position is persuasive). And it leaves DOJ in the case for the trial court to later fashion a permanent remedy for the discriminatory effects finding (should the court find no discriminatory intent, or have such a finding reversed by the Fifth Circuit again).

STILL: This development is notable. It means DOJ is pulling back from aggressive defense of voting rights. And I predict, in cases like [these] , eventually DOJ will be on the other side of this issue, supporting the right of states to make it harder to register and vote (purportedly on anti-fraud or public confidence grounds).

There is similar shuffling of the deck in North Carolina, where another change of administration – this time in the Governor’s Mansion, in the opposite partisan direction – is leading the state to seek to withdraw from a petition to the U.S. Supreme Court asking for review of a lower court decision relying on the Voting Right Act to invalidate several changes to state election law. If successful, the decision blocking those changes would stand – a win for plaintiffs. But in a turn of events that speaks to the open partisan warfare that has erupted in North Carolina, the State Legislature (which enacted the law in question) is planning to ask the Supreme Court to step in and let it defend the law. As Hasen notes, that request will involve an argument that the Governor lacks the authority to withdraw from the case – and since the State Board of Elections says it has no position, lawmakers must stand in to defend the law. What isn’t clear is who decides whether the Legislature gets to step in – the U.S. Supreme Court or the state Supreme Court? It sounds like a technical difference but the outcome of the case – in other words, whether the decision invalidating the changes lives to fight another appeal – hangs in the balance. [Also up in the air is the impact of the current eight-Justice SCOTUS vs. a potential full bench should a Justice Gorsuch get confirmed. Suffice it to say there are a lot of moving parts here.]

In short, big changes are afoot in two key battles over the future of the Voting Rights Act and its role in shaping state election laws. The possibility that the picture could scramble further is very high … don’t blink – and stay tuned!

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